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ANALYSIS OF OCTOBER 19/26, 2010 CAV OPINIONS

[Posted November 1, 2010] It’s been much busier than usual around here in the past few weeks, so I’m behind in posting analysis of recent published opinions from the Court of Appeals of Virginia; that means you get a double-header today. Here are brief summaries of two decisions that came down in the past two weeks. Both are in criminal appeals; both sets of balls and strikes were called by the same umpire, Judge Humphreys; and one appellant doubles to the gap while the other one takes a called third strike and trudges back to the dugout. (In case you hadn’t noticed, there’s a World Series going on.)

Last week, the court decided an appeal involving a statute I had never heard of before – one that criminalizes the use of a vehicle to promote prostitution. As is customary in matters like this, the appellant in Bakran v. Commonwealth let his amorous desires (the prosecution would insist upon “prurient interests”) get the better of his judgment, and he propositioned a plain-clothes police officer. Encountering the officer standing on a sidewalk near a motel, and apparently badly misjudging her career choice, he asked her after a bit of preliminary banter how much she’d charge for a bout of oral sex. She asked, “How much you got?” He replied $40, and that turned out to be an acceptable price for the putative transaction. She said she had a room at the motel, conveniently located about ten steps away, so he cheerfully got out of his car, walked over . . .

. . . and got arrested as soon as he crossed the threshold. No oral sex; not even a kiss on the cheek. The issue in this appeal is whether the fact that he propositioned her while seated in his car is enough to implicate this statute. The Court of Appeals finds that the prosecution did indeed prove that the crime was accomplished by the use of a vehicle. The opinion notes that before Bakran had “exited the vehicle” (I figure that’s how the testimony came down in court), he asked for and received permission to touch his intended’s breasts, and asked her to touch his groin. Basically there was plenty going on inside or around the vehicle, from fondling to the proposition itself, and those, the court finds in affirming the conviction, were “substantial acts in furtherance” of prostitution.

One week earlier, the same panel of the court decided Baker v. Commonwealth, in which the police admittedly goofed. Baker was engaging in what we can charitably describe as bicycling under the influence. There isn’t really an offense like that; but a police officer saw Baker biking without a light at night. When stopped, Baker displayed the usual symptoms. The officer requested permission to perform a pat-down, but Baker said no. “I’ll do it anyway,” the gendarme replied, and as he did so, “he saw that a ‘glass tube object’ with ‘some type of residue in it’ was sticking out of ‘the small coin pocket above the large pocket’ of Baker’s jeans.”

The officer suspected it was a crack pipe, so he removed it and told Baker he was under arrest. Most suspects would submit in this situation, but Baker was having none of that; he took off running in an escape attempt that must have lasted a good, solid four or five seconds before the officer corralled him.

In the trial court, Baker argued plausibly that there was no probable cause for the pat-down. Those are conducted for weapons, not contraband, based on a “reasonable, individualized suspicion,” and the officer didn’t suspect that the pipe was a weapon. He explained that he always conducted pat-down searches when he stops pedestrians or bicyclists.

You will note the presence of the troubling word always in that sentence. Hard-and-fast rules that everyone gets searched aren’t likely to find much love in the Fourth Amendment arena, and on appeal, the Commonwealth agreed that the officer didn’t have probable cause. It contended that the discovery of the pipe was inevitable, however, because Baker was headed downtown (well, this case arose in Chesapeake, where there really isn’t a “downtown,” but humor me) for public intoxication, and the search incident to that lawful arrest would have discovered the pipe.

This one looks like it’ll be harder for Baker to parry, but he gets an unexpected win when the panel, citing a Supreme Court of Virginia opinion that’s on all fours, rules that analysis of such an issue is premature. Baker had entered a conditional guilty plea after his motion to suppress had been denied. Based on the court’s ruling on the legitimacy of the search, he now gets to go back to the trial court and decide how to plead. That might result in a very different set of facts, and a jury might not see things the prosecution’s way. The court thus reverses and remands with direction to let Baker reevaluate the wisdom of pleading guilty – something Horace Rumpole assures us that one should never do.